This obscure law may wreck Rand Paul in 2016

Election Day 2014 brought a lot of good news for Republicans, but for one Republican, it wasn’t quite good enough. Rand Paul, the junior senator from Kentucky, had to be disappointed that the Republican sweep didn’t extend to Kentucky’s House of Representatives. For Paul, this means more than partisan disappointment; it may well destroy any chance he has of becoming president.

Rand Paul, the son of libertarian and sometimes Republican, Ron Paul, was elected to the U.S. Senate in the Tea Party victories of 2010. Like his father, a perennial presidential candidate in his own right, the younger Paul seems to have had his eyes set on the White House from his first days in the Senate. He was a founder of the Senate Tea Party caucus and, perhaps following his father’s lead, has emerged as a vocal critic of U.S. foreign policy. He emerged as a political star in March 2013 with a 12 hour filibuster of President Obama’s nomination of John Brennan as CIA director. The filibuster, inspired by Paul’s opposition to President Obama’s use of drones, lasted 12 hours and 52 minutes on a slow news day and catapulted Sen. Paul into the limelight.

The Kentucky problem

The problem for Rand Paul’s presidential aspirations is that he was elected to the Senate in 2010. That means that he will face reelection in 2016 as the country is choosing a successor to Barack Obama. In most states this would not present a problem. For example, 2012 saw sitting Congressman Michele Bachmann run for reelection at the same time that she ran for president while Paul Ryan was on the ballot as both a candidate for Congress and vice president. In 2008, Joe Biden won as a Senate and vice presidential candidate simultaneously. Kentucky is not most states however.

In 1990, Kentucky passed a statute that prohibits any candidate from appearing on the ballot twice. This means that, under current law, Rand Paul could not run for reelection as a senator while at the same time running for president. The only exception to the law is for a candidate in a special election to fill a vacancy:

118.405 Name of candidate to appear on ballot but once — Exceptions for

filling of vacancy.

No candidate’s name shall appear on any voting machine or absentee ballot more

than once, except that a candidate’s name may appear twice if he is a candidate for

a primary or a regular election and also a candidate to fill a vacancy in the same

office required to be filled at a special election, when the special election to fill a

vacancy is scheduled for the regular election day.

Republican wave crashed on the Kentucky House

If the Republican victories had extended to the Kentucky House, Paul’s problem could have been easily solved. In March 2014, the Lexington Herald-Leader reported that the state senate had passed a bill that would allow Paul to run for the Senate and the presidency at the same time. The bill was passed with only two Democratic votes and foundered on the rocks of the Democrat-controlled House.

Greg Stumbo, Kentucky’s speaker of the house and a Democrat, is not eager to help Paul. Stumbo told NPR that changing a law to benefit one person is a violation of Kentucky’s constitution and “There’s only one guy who’s talking about holding onto his Senate seat and also running for United States president.”

Stumbo was even more blunt in the Wall St. Journal. “I’m not a fan of Sen. Paul,” Stumbo said, “and I’m not eager to see my country turned over to him.”

Rand Paul’s best hope for a simple solution was for Republicans to capture the Kentucky House this year. This was not to be, however. The Louisville Courier-Journal reported that, when the smoke cleared, the Democrats had retained a 54-46 majority in the chamber. Paul’s hope for amending the law died along with Republican hopes for a majority.

More than one path to the top of the mountain

If Paul truly wants to be president, he must find a way to run since missing the 2016 window might kill his chances permanently. A failure to run in 2016 might mean missing his moment. If a Republican wins that year, it might be eight years before Paul has another chance to run for an open Oval Office. Even if he mounted a losing campaign in 2016, he might position himself for a successful run later since Republicans often nominate the runners up from previous campaigns.

There might be other options that would allow Paul to run for president without giving up his Senate seat. First, if he has the backing of Kentucky Republicans, the party might change its nominating process from a primary to a caucus. This would render the statute meaningless since it doesn’t address caucuses. Kentucky Democrats would not be involved in changes to the party nominating process.

Another option would be for the Paul presidential campaign to choose to stay off the ballot in Kentucky. This way Paul could run for reelection in Kentucky as a senator without running afoul of the ballot law. Paul supporters could mount a write-in campaign in the state primary, but even if Paul conceded his home state, he would only lose 44 delegates according to the Green Papers. This is a drop in the bucket compared to the 1,205 delegates needed to nominate a candidate out of 2,409 total delegates.

Finally, Paul could “lawyer up.” It appears that Paul may take the position that the Kentucky law is unconstitutional. Doug Stafford, a senior advisor to Paul, told the Lexington Herald-Leader, “Federal law governs federal elections, and the Supreme Court has made it clear that states cannot impose additional qualifications beyond those in the Constitution.”

In 1992, the Supreme Court ruled in U.S. Term Limits v. Thornton that states could not impose additional qualifications on candidates for federal office that are not enumerated in the Constitution. The Court would have to determine whether Kentucky’s law is an additional qualification for federal office or a state issue dealing with ballots.

Et tu, Florida?

Ironically, the issue may affect another potential Republican candidate for 2016 as well. Sen. Marco Rubio of Florida, also a member of congressional class of 2010, is subject to a similar law that prohibits running for separate offices on the same ballot. Unlike Paul, who has said that he will definitely stand for reelection in the Senate, Rubio has made clear that if he decides to run for president, he won’t seek reelection as a Senator. Last April, Rubio told talk show host, Hugh Hewitt, that he thinks the Florida ballot law “is the right law.”

“I think, by and large,” Rubio added, “when you choose to do something as big as [seeking the presidency], you’ve really got to be focused on that and not have an exit strategy.”

At this point, Rand Paul’s strategy for dealing with Kentucky’s ballot law is uncertain. What is certain, however, is that the 2016 race for the White House is already beginning. For Paul, the clock is ticking.